CYIL vol. 10 (2019)

PETR ŠUSTEK CYIL 10 ȍ2019Ȏ and Peoples’ Rights, Article 5 of the Arab Charter on Human Rights or Article 6 of the Convention on the Rights of the Child. Even though human rights are generally considered indivisible and equal, the right to life is sometimes referred to as the most fundamental human right, 15 or at least the right with a distinguished position among human rights 16 . It might be argued that human life is protected by the means of public law, mainly criminal law, and that its private law protection is not necessary. However, the private law protection of rights of a person – including the right to life – both realises and complements the constitutional and international guarantees of these rights. 17 If tort law protects many legally protected values such as property, self-determination, or health (that are also protected by the criminal law), it can be reasonably argued that it should also protect the fundamental value of human life. Reflective damages represent at least a partially sufficient way of achieving this aim. 2.1 Germany and Austria InGermany, damages used to be awarded only for nervous shock induced by learning of the primary damage or witnessing the harmful event (damages for nervous shock, Schockschaden ). The nervous shock must have medically detectable effects that exceed health issues which are, according to general human experience, usually related to receiving information about the death of a beloved person 18 . After the amendment of the BGB (the German Civil Code) in 2017, 19 though, “mere” emotional harm is also compensable in cases of death of the primary victim (as the so-called Hinterbliebenengeld ). The compensation is provided only if a special personal relationship between the secondary victim and the deceased person is established; this special relationship is presumed in case of a spouse, life partner, parent, or child. The fact that reflective damages still cannot be awarded if the primary victim suffered a very serious injury but survived – while reflective damages in these cases are awarded in several other European jurisdictions and are also recommended by the Principles of European Tort Law (PETL) 20 – is currently debated in Germany 21 . There can also be mentioned two cases in which the German court practice did not award damages. In the first of them, two girls who were close friends were walking on a road when one of them was killed by a car in front of the second girl’s eyes. The surviving girl developed 15 See VAN DAM, Cees. European Tort Law. Oxford University Press, Oxford 2006, p. 143, or KOKEŠ, Marian. Commentary to Article 6. In WAGNEROVÁ, Eliška, ŠIMÍČEK, Vojtěch, LANGÁŠEK, Tomáš, POSPÍŠIL, Ivo (eds.). Listina základních práv a svobod. Komentář. [The Charter of Fundamental Rights and Freedoms. The Commentary.] Wolters Kluwer, Praha 2012, p. 150. 16 See KRATOCHVÍL, Jan. Právo na život (čl. 2 EÚLP). [The Right to Life. Article 2 of the ECHR.] In KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan BOBEK, Michal. Evropská úmluva o lidských právech. Komentář. [The European Convention on Human Rights. The Commentary.] C. H. Beck, Praha 2012, p. 347. 17 See RYŠKA, Michal, KOKEŠ, Marian. Komentář k § 81. [Commentary to Section 81.] In PETROV, Jan, VÝTISK, Michal, BERAN, Vladimír a kol. Občanský zákoník. Komentář. [Civil Code. The Commentary.] C.H. Beck, Praha 2017, pp. 122-123. 18 See for example the decision of the German Federal Court of Justice of 11 May 1971, VI ZR 78/70. 19 See Section 844 (3) of the BGB. 20 Article 10:301 (1) of the Principles of European Tort Law (PETL): „Non-pecuniary damage can also be the subject of compensation for persons having a close relationship with a victim suffering a fatal or very serious non-fatal injury“ . 21 See KATZENMEIER, Christian. Hinterbliebenengeld Anspruch auf Entschädigung für seelisches Leid. Juristen Zeitung. (2017, Vol. 72, No. 18), pp. 869-876. 2. Secondary victims in selected European jurisdictions

324